[Federal Register Volume 86, Number 148 (Thursday, August 5, 2021)]
[Rules and Regulations]
[Pages 42718-42724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16853]


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DEPARTMENT OF EDUCATION

34 CFR Chapter III

[Docket ID ED-2021-OSERS-0018]


Final Priority--Technical Assistance and Dissemination To Improve 
Services and Results for Children With Disabilities and Technical 
Assistance on State Data Collection--National Assessment Center

AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Final priority.

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SUMMARY: The Department of Education (Department) announces a priority 
for the Technical Assistance and Dissemination to Improve Services and 
Results for Children with Disabilities and Technical Assistance on 
State Data Collection program, Assistance Listing Number 84.326G. The 
Department may use the priority for competitions in fiscal year (FY) 
2021 and later years. We will use the priority to award a cooperative 
agreement for a National Assessment Center (Center) to focus attention 
on an identified need to address national, State, and local assessment 
issues related to students with disabilities, including students with 
disabilities who are also English learners (ELs).

DATES: Effective September 7, 2021.

FOR FURTHER INFORMATION CONTACT: David Egnor, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 5163, Potomac Center Plaza, 
Washington, DC 20202-5076. Telephone: (202) 245-7334 or (202) 856-6409. 
Email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 
    Purpose of Programs: The purpose of the Technical Assistance and 
Dissemination to Improve Services and Results for Children with 
Disabilities program is to promote academic achievement and to improve 
results for children with disabilities by providing technical 
assistance (TA), supporting model demonstration projects, disseminating 
useful information, and implementing activities that are supported by 
scientifically based research. The purpose of the Technical Assistance 
on State Data Collection program is to improve the capacity of States 
to meet the Individuals with Disabilities Education Act (IDEA) data 
collection and reporting requirements. In addition, the Consolidated 
Appropriations Act, 2021, gives the Secretary authority to use funds 
reserved under section 611(c) of the IDEA to administer and carry out 
other services and activities to improve data collection, coordination, 
quality, and use under Parts B and C of the IDEA.
    Program Authority: 20 U.S.C. 1411, 1416, 1463, and 1481; and the 
Consolidated Appropriations Act, 2021, Div. H, Title III of Public Law 
116-260, 134 Stat. 1182.

    Note: Projects will be awarded and must be operated in a manner 
consistent with the nondiscrimination requirements contained in 
Federal civil rights laws.

    Applicable Program Regulations: 34 CFR 300.702.

[[Page 42719]]

    We published a notice of proposed priorities (NPP) for this program 
in the Federal Register on March 25, 2021 (86 FR 15830). That document 
contained background information and our reasons for proposing the 
particular priorities.
    Under section 681 of the IDEA, the Secretary may give priority to 
the activities listed in section 681(d) without regard to the 
rulemaking procedures in section 553 of the Administrative Procedure 
Act (APA). The activities required to be conducted under Proposed 
Priority 1 are activities listed in section 681(d), whereas the 
activities required to be conducted under Proposed Priority 2 include 
activities that are outside the exemption from rulemaking under IDEA 
section 681(d). As a result, pursuant to the notice and comment 
rulemaking requirements of section 553 of the APA, in the NPP, the 
Department specifically invited comments regarding Proposed Priority 2, 
including: (1) The program requirements under Proposed Priority 2; and 
(2) the application and administrative requirements under the common 
elements section of Proposed Priority 1 and Proposed Priority 2, but 
only as the requirements apply to Proposed Priority 2. We appreciate 
commenters' input on Proposed Priority 1. For the purposes of this 
notice of final priority (NFP), we address only the comments on 
Proposed Priority 2, including the associated application and 
administrative requirements.
    We make substantive changes to Proposed Priority 2 by adding a 
focus on increasing the capacity of parents of students with 
disabilities to understand the statutory and regulatory bases for, and 
benefits of, including all students with disabilities in State and 
districtwide assessments and other assessments used for educational 
programming and instructional purposes. These substantive changes 
impact how Proposed Priority 2 focuses attention on the important role 
that parents play in addressing an identified need to address national, 
State, and local assessment issues related to students with 
disabilities, including students with disabilities who are also English 
learners (ELs).
    There are also editorial differences between Proposed Priority 2 
and its requirements and the final priority and requirements. In this 
NFP, we refer to Proposed Priority 2 as the priority, and to the 
Proposed Priority 2 application and administrative requirements common 
to Proposed Priority 1 and 2, as the requirements.
    Public Comment: In response to our invitation in the NPP, eight 
parties submitted comments on the priority and requirements.
    Generally, we do not address technical and other minor changes, or 
suggested changes the law does not authorize us to make under the 
applicable statutory authority. In addition, we do not address general 
comments that raised concerns not directly related to the priority or 
requirements.
    Analysis of Comments and Changes: An analysis of the comments and 
of any changes in the priority since publication of the NPP follows.
    Comment: Four commenters recommended that the Center include a 
focus on increasing the capacity of parents to understand the 
statutory, regulatory, and instructional programming bases for 
including all students with disabilities in State and districtwide 
assessments. These commenters noted that parents lack sufficient 
information regarding the participation of students with disabilities 
in State and districtwide assessments.
    Discussion: We agree with the commenters regarding the importance 
of increasing the capacity of parents to understand the statutory, 
regulatory, and instructional programming bases for including all 
students with disabilities in State and districtwide assessments as 
well as other assessments used for educational programming and 
instructional purposes. Increasing parents' understanding in this area 
is likely to help ensure their meaningful involvement in decisions 
States make in analyzing and using diagnostic, interim, and summative 
assessment data to better achieve their State-Identified Measurable 
Result (SIMR), for those States that have a SIMR related to assessment, 
while at the same time incentivizing States to ensure the data reviewed 
and analyzed by the parents are of the highest quality; and thus 
improve data quality and use under IDEA Part B, consistent with section 
611(c) of the IDEA and the Consolidated Appropriations Act, 2021, which 
authorizes the Secretary to use funds reserved under section 611(c) of 
the IDEA to administer and carry out other services and activities to 
improve data collection, coordination, quality, and use under Parts B 
and C of the IDEA. Therefore, we are revising the priority to require 
applicants to propose how the Center will increase the awareness of and 
understanding by parents of students with disabilities, regarding how 
students with disabilities are included in, and benefit from, 
participation in State and districtwide assessments and other 
assessments used for educational programming and instructional purposes 
to improve instruction of students with disabilities and support the 
implementation of the SIMR.
    Changes: We have revised the expected outcomes of the priority by 
requiring applicants propose how the Center will increase parents of 
students with disabilities' awareness of and understanding of how 
students with disabilities are included in, and benefit from, 
participation in diagnostic, interim and summative assessments.
    Comment: One commenter recommended revising references to 
``interim'' assessments to ``formative'' assessments, noting that 
``interim'' implies a less prescriptive and formal process than 
``formative.''
    Discussion: We understand the point the commenter makes in general 
regarding the common meanings of the terms ``interim'' and 
``formative''; however, we disagree with the commenter that these 
distinctions apply to large-scale State and districtwide academic 
assessments. Interim assessments are more prescriptive and formal than 
formative assessments. Interim academic assessments typically focus on 
measuring student achievement based on a subset of State or school 
district established grade-level academic content standards. As such, 
they are designed to measure individual and collective student growth 
and are used to evaluate the effectiveness of teaching practices, 
programs, and initiatives; and project whether a student, class, or 
school is on track to achieve established proficiency benchmarks. 
Interim assessments can also provide information regarding the 
instructional needs of individual students, but to a lesser extent than 
formative assessments. In contrast, formative assessments typically are 
connected to a discrete instructional unit, the results of which are 
intended to help educators guide the learning process of individual 
students, rather than measure student performance against State or 
districtwide academic content and achievement standards.
    Changes: None.
    Comment: One commenter stated that the structure of the notice was 
confusing, and, in response to Executive Order 12866 and the 
Presidential memorandum ``Plain Language in Government Writing,'' 
recommended ways to reformat the proposed priority to improve clarity.
    Discussion: The formatting for the notice published in the Federal 
Register was consistent with the Department's formatting requirements 
for publishing proposed priorities. However, we

[[Page 42720]]

appreciate the commenter's feedback and will consider the commenter's 
formatting recommendations for future proposed priorities. In addition, 
we have described above our reasons for the structure of the NPP, and 
this NFP.
    Changes: None.

Final Priority

Targeted and Intensive Technical Assistance to States on the Analysis 
and Use of Diagnostic, Interim, and Summative Assessment Data To 
Support Implementation of States' Identified Measurable Results

    The purpose of this priority is to (1) assist those States that 
have a SIMR related to assessment in analyzing and using diagnostic, 
interim, and summative assessment data to better achieve the SIMR as 
described in their IDEA Part B State Systemic Improvement Plans 
(SSIPs); and (2) assist State efforts to provide technical assistance 
(TA) to local educational agencies (LEAs) in analyzing and using State 
and districtwide assessment data, for those States that have a SIMR 
related to assessment, to better achieve the SIMR, as appropriate.
    The Center must achieve, at a minimum, the following expected 
outcomes:
    (a) Increased capacity of State educational agency (SEA) personnel 
in States that have a SIMR related to assessment results to analyze and 
use diagnostic, interim and summative assessment data to better achieve 
the SIMR as described in the IDEA Part B SSIPs, including using 
diagnostic, interim and summative assessment data to evaluate and 
improve educational policy, inform instructional programs, and improve 
instruction for students with disabilities;
    (b) Increased capacity of SEA personnel to provide TA to LEAs to 
analyze and use diagnostic, interim and summative assessment data to 
improve instruction of students with disabilities and support the 
implementation of the SIMR; and
    (c) Increased capacity of parents of students with disabilities to 
understand how students with disabilities are included in, and benefit 
from, participation in diagnostic, interim and summative assessments to 
improve instruction of students with disabilities and support 
implementation of the SIMR.
    In addition to these program requirements, to be considered for 
funding under this priority, applicants must meet the application and 
administrative requirements under the priority Technical Assistance and 
Dissemination To Improve Services and Results for Children With 
Disabilities--National Assessment Center and the following application 
and administrative requirements, which are:
    (a) Demonstrate, in the narrative section of the application under 
``Significance,'' how the proposed project will--
    (1) Address the needs of SEAs and LEAs to analyze and use 
diagnostic, interim, and summative assessment data in instructional 
decision-making to improve teaching and learning for students with 
disabilities. To meet this requirement the applicant must--
    (i) Present applicable national, State, and local data 
demonstrating the needs of SEAs and LEAs to analyze and use diagnostic, 
interim, and summative assessment data in instructional decision-making 
to improve teaching and learning for students with disabilities;
    (ii) Demonstrate knowledge of current educational issues and policy 
initiatives related to analyzing and using diagnostic, interim, and 
summative assessment data in instructional decision-making to improve 
teaching and learning for students with disabilities; and
    (iii) Describe the current level of implementation related to 
analyzing and using diagnostic, interim, and summative assessment data 
in instructional decision-making to improve teaching and learning for 
students with disabilities; and
    (2) Improve the analysis and use of diagnostic, interim, and 
summative assessment data to improve teaching and learning for students 
with disabilities.
    (b) Demonstrate, in the narrative section of the application under 
``Quality of project services,'' how the proposed project will--
    (1) Ensure equal access and treatment for members of groups that 
have traditionally been underrepresented based on race, color, national 
origin, gender, age, or disability. To meet this requirement, the 
applicant must describe how it will--
    (i) Identify the needs of the intended recipients for TA and 
information; and
    (ii) Ensure that products and services meet the needs of the 
intended recipients (e.g., by creating materials in formats and 
languages accessible to the stakeholders served by the intended 
recipients);
    (2) Achieve its goals, objectives, and intended outcomes. To meet 
this requirement, the applicant must provide--
    (i) Measurable intended project outcomes; and
    (ii) In appendix A, the logic model \1\ by which the proposed 
project will achieve its intended outcomes that depicts, at a minimum, 
the goals, activities, outputs, and intended outcomes of the proposed 
project;
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    \1\ Logic model (also referred to as a theory of action) means a 
framework that identifies key project components of the proposed 
project (i.e., the active ``ingredients'' that are hypothesized to 
be critical to achieving the relevant outcomes) and describes the 
theoretical and operational relationships among the key project 
components and relevant outcomes.
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    (3) Use a conceptual framework (and provide a copy in Appendix A) 
to develop project plans and activities, describing any underlying 
concepts, assumptions, expectations, beliefs, or theories, as well as 
the presumed relationships or linkages among these variables, and any 
empirical support for this framework;

    Note:  The following websites provide more information on logic 
models and conceptual frameworks: www.osepideasthatwork.org/logicModel and www.osepideasthatwork.org/resources-grantees/program-areas/ta-ta/tad-project-logic-model-and-conceptual-framework.

    (4) Be based on current research and make use of evidence-based \2\ 
practices (EBPs). To meet this requirement, the applicant must 
describe--
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    \2\ For the purposes of this priority, ``evidence-based'' means, 
at a minimum, evidence that demonstrates a rationale (as defined in 
34 CFR 77.1), where a key project component included in the 
project's logic model is informed by research or evaluation findings 
that suggest the project component is likely to improve relevant 
outcomes.
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    (i) The current research on the effectiveness of analyzing and 
using diagnostic, interim, and summative assessment data in 
instructional decision-making to improve teaching and learning for 
students with disabilities; and
    (ii) How the proposed project will incorporate current EBPs in the 
development and delivery of its products and services;
    (5) Develop products and provide services that are of high quality 
and sufficient intensity and duration to achieve the intended outcomes 
of the proposed project. To address this requirement, the applicant 
must describe--
    (i) How it proposes to identify or develop the knowledge base on 
analyzing and using diagnostic, interim, and summative assessment data 
in instructional decision-making to improve teaching and learning for 
students with disabilities;
    (ii) Its proposed approach to universal, general TA,\3\ which must

[[Page 42721]]

identify the intended recipients, including the type and number of 
recipients, that will receive the products and services under this 
approach;
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    \3\ ``Universal, general TA'' means TA and information provided 
to independent users through their own initiative, resulting in 
minimal interaction with TA center staff and including one-time, 
invited or offered conference presentations by TA center staff. This 
category of TA also includes information or products, such as 
newsletters, guidebooks, or research syntheses, downloaded from the 
TA center's website by independent users. Brief communications by TA 
center staff with recipients, either by telephone or email, are also 
considered universal, general TA.
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    (iii) Its proposed approach to targeted, specialized TA,\4\ which 
must identify--
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    \4\ ``Targeted, specialized TA'' means TA services based on 
needs common to multiple recipients and not extensively 
individualized. A relationship is established between the TA 
recipient and one or more TA center staff. This category of TA 
includes one-time, labor-intensive events, such as facilitating 
strategic planning or hosting regional or national conferences. It 
can also include episodic, less labor-intensive events that extend 
over a period of time, such as facilitating a series of conference 
calls on single or multiple topics that are designed around the 
needs of the recipients. Facilitating communities of practice can 
also be considered targeted, specialized TA.
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    (A) The intended recipients, including the type and number of 
recipients, that will receive the products and services under this 
approach; and
    (B) Its proposed approach to measure the readiness of potential TA 
recipients to work with the project, assessing, at a minimum, their 
current infrastructure, available resources, and ability to build 
capacity at the local level; and
    (iv) Its proposed approach to intensive, sustained TA,\5\ which 
must identify--
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    \5\ ``Intensive, sustained TA'' means TA services often provided 
on-site and requiring a stable, ongoing relationship between the TA 
center staff and the TA recipient. ``TA services'' are defined as 
negotiated series of activities designed to reach a valued outcome. 
This category of TA should result in changes to policy, program, 
practice, or operations that support increased recipient capacity or 
improved outcomes at one or more systems levels.
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    (A) The intended recipients, including the type and number of 
recipients, that will receive the products and services under this 
approach;
    (B) Its proposed approach to measure the readiness of SEA and LEA 
personnel to work with the project, including their commitment to the 
initiative, alignment of the initiative to their needs, current 
infrastructure, available resources, and ability to build capacity at 
the SEA and LEA levels;
    (C) Its proposed plan for assisting SEAs (and LEAs, in conjunction 
with SEAs) to build or enhance training systems that include 
professional development based on adult learning principles and 
coaching;
    (D) Its proposed plan for working with appropriate levels of the 
education system (e.g., SEAs, regional TA providers, LEAs, schools, and 
families) to ensure that there is communication between each level and 
that there are systems in place to support the collection, analysis, 
and use of diagnostic, interim, and summative assessment data in 
instructional decision-making to improve teaching and learning for 
students with disabilities; and
    (E) Its proposed plan for collaborating and coordinating with 
Department-funded TA investments, where appropriate, in order to align 
complementary work and jointly develop and implement products and 
services to meet the purposes of this priority;
    (6) Develop products and implement services that maximize 
efficiency. To address this requirement, the applicant must describe--
    (i) How the proposed project will use technology to achieve the 
intended project outcomes;
    (ii) With whom the proposed project will collaborate and the 
intended outcomes of this collaboration; and
    (iii) How the proposed project will use non-project resources to 
achieve the intended project outcomes; and
    (7) Develop a dissemination plan that describes how the applicant 
will systematically distribute information, products, and services to 
varied intended audiences, using a variety of dissemination strategies, 
to promote awareness and use of the Center's products and services.
    (c) In the narrative section of the application under ``Quality of 
the project evaluation,'' include an evaluation plan for the project 
developed in consultation with and implemented by a third-party 
evaluator.\6\ The evaluation plan must--
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    \6\ A ``third-party'' evaluator is an independent and impartial 
program evaluator who is contracted by the grantee to conduct an 
objective evaluation of the project. This evaluator must not have 
participated in the development or implementation of any project 
activities, except for the evaluation activities, nor have any 
financial interest in the outcome of the evaluation.
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    (1) Articulate formative and summative evaluation questions, 
including important process and outcome evaluation questions. These 
questions should be related to the project's proposed logic model 
required in paragraph (b)(2)(ii) of these requirements;
    (2) Describe how progress in and fidelity of implementation, as 
well as project outcomes, will be measured to answer the evaluation 
questions. Specify the measures and associated instruments or sources 
for data appropriate to the evaluation questions. Include information 
regarding reliability and validity of measures where appropriate;
    (3) Describe strategies for analyzing data and how data collected 
as part of this plan will be used to inform and improve service 
delivery over the course of the project and to refine the proposed 
logic model and evaluation plan, including subsequent data collection;
    (4) Provide a timeline for conducting the evaluation, and include 
staff assignments for completing the plan. The timeline must indicate 
that the data will be available annually for the annual performance 
report (APR) and at the end of Year 2 for the review process described 
under the heading, Fourth and Fifth Years of the Project; and
    (5) Dedicate sufficient funds in each budget year to cover the 
costs of developing or refining the evaluation plan in consultation 
with a ``third-party'' evaluator, as well as the costs associated with 
the implementation of the evaluation plan by the third-party evaluator.
    (d) Demonstrate, in the narrative section of the application under 
``Adequacy of resources and quality of project personnel,'' how--
    (1) The proposed project will encourage applications for employment 
from persons who are members of groups that have traditionally been 
underrepresented based on race, color, national origin, gender, age, or 
disability, as appropriate;
    (2) The proposed key project personnel, consultants, and 
subcontractors have the qualifications and experience to carry out the 
proposed activities and achieve the project's intended outcomes;
    (3) The applicant and any key partners have adequate resources to 
carry out the proposed activities; and
    (4) The proposed costs are reasonable in relation to the 
anticipated results and benefits.
    (e) Demonstrate, in the narrative section of the application under 
``Quality of the Management Plan,'' how--
    (1) The proposed management plan will ensure that the project's 
intended outcomes will be achieved on time and within budget. To 
address this requirement, the applicant must describe--
    (i) Clearly defined responsibilities for key project personnel, 
consultants, and subcontractors, as applicable; and
    (ii) Timelines and milestones for accomplishing the project tasks;
    (2) Key project personnel and any consultants and subcontractors 
will be allocated and how these allocations are appropriate and 
adequate to achieve the project's intended outcomes;

[[Page 42722]]

    (3) The proposed management plan will ensure that the products and 
services provided are of high quality, relevant, and useful to 
recipients; and
    (4) The proposed project will benefit from a diversity of 
perspectives, including those of families, educators, TA providers, 
researchers, and policy makers, among others, in its development and 
operation.
    (f) Address the following application requirements. The applicant 
must--
    (1) Include, in Appendix A, personnel-loading charts and timelines, 
as applicable, to illustrate the management plan described in the 
narrative; \7\
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    \7\ OSEP has found that a minimum of a three-quarter time 
equivalency (0.75 FTE) in the role of project director (or divided 
between a half-time equivalency in the role of the project director 
and a quarter-time equivalency in the role of a co-project director) 
is necessary to ensure effective implementation of the management 
plan and that products and services provided are of high quality, 
relevant, and useful to recipients.
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    (2) Include, in the budget, attendance at the following:
    (i) A one and one-half day kick-off meeting in Washington, DC, or 
virtually, after receipt of the award, and an annual planning meeting 
in Washington, DC, or virtually, with the OSEP project officer and 
other relevant staff during each subsequent year of the project period.

    Note: Within 30 days of receipt of the award, a post-award 
teleconference must be held between the OSEP project officer and the 
grantee's project director or other authorized representative;

    (ii) A two and one-half day project directors' conference in 
Washington, DC, or virtually, during each year of the project period;
    (iii) Two annual two-day trips, or virtually, to attend Department 
briefings, Department-sponsored conferences, and other meetings, as 
requested by OSEP; and
    (iv) A one-day intensive 3+2 review meeting in Washington, DC, or 
virtually, during the second year of the project period;
    (3) Include, in the budget, a line item for an annual set-aside of 
five percent of the grant amount to support emerging needs that are 
consistent with the proposed project's intended outcomes, as those 
needs are identified in consultation with, and approved by, the OSEP 
project officer. With approval from the OSEP project officer, the 
project must reallocate any remaining funds from this annual set-aside 
no later than the end of the third quarter of each budget period;
    (4) Maintain a high-quality website, with an easy-to-navigate 
design, that meets government or industry-recognized standards for 
accessibility;
    (5) Ensure that annual project progress toward meeting project 
goals is posted on the project website; and
    (6) Include, in Appendix A, an assurance to assist OSEP with the 
transfer of pertinent resources and products and to maintain the 
continuity of services to States during the transition to a new award 
at the end of this award period, as appropriate.
    Fourth and Fifth Years of the Project:
    In deciding whether to continue funding the project for the fourth 
and fifth years, the Secretary will consider the requirements of 34 CFR 
75.253(a), including--
    (a) The recommendations of a 3+2 review team consisting of experts 
who have experience and knowledge in providing technical assistance to 
SEA and LEA personnel in including students with disabilities in 
assessments and accountability systems. This review will be conducted 
during a one-day intensive meeting that will be held during the last 
half of the second year of the project period;
    (b) The timeliness with which, and how well, the requirements of 
the negotiated cooperative agreement have been or are being met by the 
project; and
    (c) The quality, relevance, and usefulness of the project's 
products and services and the extent to which the project's products 
and services are aligned with the project's objectives and likely to 
result in the project achieving its intended outcomes.
    Under 34 CFR 75.253, the Secretary may reduce continuation awards 
or discontinue awards in any year of the project period for excessive 
carryover balances or a failure to make substantial progress. The 
Department intends to closely monitor unobligated balances and 
substantial progress under this program and may reduce or discontinue 
funding accordingly.
    Types of Priorities:
    When inviting applications for a competition using one or more 
priorities, we designate the type of each priority as absolute, 
competitive preference, or invitational through a notice in the Federal 
Register. The effect of each type of priority follows:
    Absolute priority: Under an absolute priority, we consider only 
applications that meet the priority (34 CFR 75.105(c)(3)).
    Competitive preference priority: Under a competitive preference 
priority, we give competitive preference to an application by (1) 
awarding additional points, depending on the extent to which the 
application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) 
selecting an application that meets the priority over an application of 
comparable merit that does not meet the priority (34 CFR 
75.105(c)(2)(ii)).
    Invitational priority: Under an invitational priority, we are 
particularly interested in applications that meet the priority. 
However, we do not give an application that meets the priority a 
preference over other applications (34 CFR 75.105(c)(1)).
    This document does not preclude us from proposing additional 
priorities, requirements, definitions, or selection criteria, subject 
to meeting applicable rulemaking requirements.

    Note:  This document does not solicit applications. In any year 
in which we choose to use this priority, we invite applications 
through a notice in the Federal Register.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Office of Management and Budget 
(OMB) must determine whether this regulatory action is ``significant'' 
and, therefore, subject to the requirements of the Executive order and 
subject to review by OMB. Section 3(f) of Executive Order 12866 defines 
a ``significant regulatory action'' as an action likely to result in a 
rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
Tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This final regulatory action is not a significant regulatory action 
subject to review by OMB under section 3(f) of Executive Order 12866. 
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the 
Office of Information and Regulatory Affairs designated this rule as 
not a ``major rule,'' as defined by 5 U.S.C. 804(2).
    We have also reviewed this final regulatory action under Executive 
Order 13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent

[[Page 42723]]

permitted by law, Executive Order 13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing the final priority only on a reasoned determination 
that its benefits justify its costs. In choosing among alternative 
regulatory approaches, we selected those approaches that maximize net 
benefits. Based on the analysis that follows, the Department believes 
that this regulatory action is consistent with the principles in 
Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, and Tribal governments in the exercise of 
their governmental functions.
    In accordance with these Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.

Discussion of Potential Costs and Benefits

    The Department believes that the costs associated with the final 
priority will be minimal, while the benefits are significant. The 
Department believes that this regulatory action does not impose 
significant costs on eligible entities. Participation in this program 
is voluntary, and the costs imposed on applicants by this regulatory 
action will be limited to paperwork burden related to preparing an 
application. The benefits of implementing the program to focus 
attention on an identified need to address national, State, and local 
assessment issues related to students with disabilities, including 
students with disabilities who are also ELs, will outweigh the costs 
incurred by applicants, and the costs of carrying out activities 
associated with the application will be paid for with program funds. 
For these reasons, we have determined that the costs of implementation 
will not be excessively burdensome for eligible applicants, including 
small entities.

Regulatory Alternatives Considered

    The Department believes that the priority is needed to administer 
the program effectively.

Paperwork Reduction Act of 1995

    The final priority contains information collection requirements 
that are approved by OMB under control number 1820-0028; the final 
priority does not affect the currently approved data collection.
    Regulatory Flexibility Act Certification: The Secretary certifies 
that this final regulatory action will not have a significant economic 
impact on a substantial number of small entities. The U.S. Small 
Business Administration (SBA) Size Standards define proprietary 
institutions as small businesses if they are independently owned and 
operated, are not dominant in their field of operation, and have total 
annual revenue below $7,000,000. Nonprofit institutions are defined as 
small entities if they are independently owned and operated and not 
dominant in their field of operation. Public institutions are defined 
as small organizations if they are operated by a government overseeing 
a population below 50,000.
    The small entities that this final regulatory action will affect 
are SEAs; LEAs, including charter schools that operate as LEAs under 
State law; institutions of higher education; other public agencies; 
private nonprofit organizations; freely associated States and outlying 
areas; Indian Tribes or Tribal organizations; and for-profit 
organizations. We believe that the costs imposed on an applicant by the 
final priority and requirements will be limited to paperwork burden 
related to preparing an application and that the benefits of this final 
priority will outweigh any costs incurred by the applicant.
    Participation in Technical Assistance and Dissemination to Improve 
Services and Results for Children with Disabilities and Technical 
Assistance on State Data Collection--National Assessment Center program 
is voluntary. For this reason, the final priority will impose no burden 
on small entities unless they applied for funding under the program. We 
expect that in determining whether to apply for the Technical 
Assistance and Dissemination to Improve Services and Results for 
Children with Disabilities and Technical Assistance on State Data 
Collection--National Assessment Center program funds, an eligible 
entity will evaluate the requirements of preparing an application and 
any associated costs and weigh them against the benefits likely to be 
achieved by receiving a Technical Assistance and Dissemination to 
Improve Services and Results for Children with Disabilities and 
Technical Assistance on State Data Collection--National Assessment 
Center program grant. An eligible entity will most likely apply only if 
it determines that the likely benefits exceed the costs of preparing an 
application.
    We believe that the final priority will not impose any additional 
burden on a small entity applying for a grant than the entity would 
face in the absence of the final action. That is, the length of the 
applications those entities would submit in the absence of the final 
regulatory action and the time needed to prepare an application will 
likely be the same.
    This final regulatory action will not have a significant economic 
impact on a small entity once it receives a grant because it would be 
able to meet the costs of compliance using the funds provided under 
this program.
    Intergovernmental Review: This program is subject to Executive 
Order 12372 and the regulations in 34 CFR part 79. One of the 
objectives of the Executive order is to foster an intergovernmental 
partnership and a strengthened federalism. The Executive order relies 
on processes developed by State and local governments for coordination 
and review of proposed Federal financial assistance.
    This document provides early notification of our specific plans and 
actions for this program.

[[Page 42724]]

    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or other accessible 
format.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other documents of this Department published 
in the Federal Register, in text or Portable Document Format (PDF). To 
use PDF you must have Adobe Acrobat Reader, which is available free at 
the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

Katherine Neas,
Acting Assistant Secretary for the Office of Special Education and 
Rehabilitative Services.
[FR Doc. 2021-16853 Filed 8-3-21; 4:15 pm]
BILLING CODE 4000-01-P